Robert William McAuley v Tradelink Plumbing Services - [1999] QDC 9

IN THE DISTRICT COURT

HELD AT BRISBANE

QUEENSLAND

[Robert William McAuley v Tradelink Plumbing Services & Ors]

[Before Brabazon Q.C. DCJ]

Plaint No 2666 of 1998
BETWEEN:

ROBERT WILLIAM McAULEY

Plaintiff

AND:

TRADELINK PLUMBING SUPPLIES

First Defendant
AND:

CRANE DISTRIBUTION LIMITED

Second Defendant
AND:
VACC INSURANCE

Third Defendant

JUDGMENT

Judgment delivered: 5 February 1999

Catchwords: Motor Accident Insurance Act 1999 - sections 34, 37 & 39. Effect of non-compliance. “nunc pro tunc”.

Counsel: Mr M Howe for the plaintiff
Mr K Holyoak for the third defendant

Solicitors: Baker Johnson for the plaintiff
Gadens for the third defendant

Hearing Date(s): 21 December 1998

IN THE DISTRICT COURT
HELD AT BRISBANE
QUEENSLAND
  Plaint No 2666 of 1998
BETWEEN:
  ROBERT WILLIAM McAULEY
  Plaintiff
AND:
  TRADELINK PLUMBING SUPPLIES
  First Defendant
AND:
  CRANE DISTRIBUTION LIMITED
  Second Defendant
AND:
  VACC INSURANCE
  Third Defendant
  REASONS FOR JUDGMENT - JUDGE BRABAZON Q.C.
  Delivered the 5th day of February, 1999

Mr McAuley wishes to claim for damages for personal injuries caused by a motor vehicle accident. He faces an obstacle, created by non-compliance with s.37 of the Motor Accident Insurance Act 1984 in that a notice required by that section was given after the nine months allowed.

This application requests the court to extend the time within which Mr McAuley can comply with the requirements of s.37.

The Facts
This is an interlocutory application. The facts are asserted in affidavits. They have not been finally assessed by the court. The following facts are taken to be true, for the purposes of this application.

On Thursday 16th November 1995 Mr McAuley was employed by the Underwood office of Tradelink Plumbing Supplies. He was driving a Tradelink vehicle when it ran off the road. The road was wet and he lost control of the vehicle. He was taken to hospital by ambulance. Police attended the scene, and made a report. He went to work on the Saturday morning, but was then away from work until 3rd December. He suffered pain. While away, he saw two doctors at his usual family practice, and had several visits to a physiotherapist. He lodged an application for workers’ compensation on 21 November.

While he was at work on Saturday, 18th November, a workmate, Alan Dear, explained to him that the tyres on the vehicle that he had been driving were bald. He said that the condition had been reported by Dear to an area manager, but the tyres had not been changed by the time of the accident.

At a later time he spoke to another workmate, Gordon Daniels, about the bald tyres. His information corroborated, in effect, what Dear had said. The later information also indicated that the defective tyres were changed not long after his accident.

He continued to suffer symptoms from his injuries. His WorkCover application resulted in an appearance before the Workers’ Compensation Tribunal on 28th October 1995. By that time, he had obtained advice from solicitors, Robert…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] QDC 9
Decision Date: 5 February 1999

CaseChat Overview and Summary

In the District Court of Queensland, the plaintiff, Robert William McAuley, seeks damages for personal injuries sustained in a motor vehicle accident. He is suing Tradelink Plumbing Supplies and Crane Distribution Limited, among others. The third defendant, VACC Insurance, has raised the issue of non-compliance with the Motor Accident Insurance Act 1994 (Qld). Specifically, a notice required by section 37 of the Act was given after the nine-month period allowed, creating an obstacle for Mr McAuley's claim.

The court had to decide whether to exercise its discretion to allow Mr McAuley to proceed with his claim despite the non-compliance with the statutory requirements. The legal issues included whether the non-compliance could be remedied, and if so, whether the court should grant leave to proceed under section 39(5)(c) of the Act.

The court found that while some deficiencies in the notice could be remedied, the undue delay could not. Despite this, VACC Insurance had not waived the failure to comply with the nine-month limit, and the court considered various factors in deciding to exercise its discretion in Mr McAuley's favour. These factors included his lack of personal awareness of the requirement, the promptness of his response to VACC Insurance's notices, and the absence of actual prejudice to VACC Insurance. The court granted leave for Mr McAuley to bring the proceedings despite the non-compliance, allowing him to pursue his claim for damages.

Orders